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MILLER v. BARKLEY

August 3, 2005.

DARREN MILLER, Petitioner,
v.
WARREN BARKLEY Respondent.



The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

On September 18, 2003, pro se petitioner Darren Miller ("Miller") filed this timely petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Miller seeks to vacate his 2001 conviction following trial for criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds. In his petition, Miller claims that he is being held unlawfully on the following grounds: (1) the trial court's initial instruction to the jury concerning accomplice liability was incomplete and misleading; (2) the trial court's rereading of its instruction concerning accomplice liability to the jury, in response to a jury note during deliberations, was erroneous; (3) the prosecutor made improper comments during his closing argument to the jury; and (4) his trial counsel rendered ineffective assistance to him, which violated his rights under the Sixth Amendment.

  On December 10, 2003, the petition was referred to Magistrate Judge Kevin Nathaniel Fox for a report and recommendation (the "Report"). On January 31, 2005, Judge Fox recommended that the petition be denied.

  BACKGROUND

  The relevant facts are set forth in the Report and summarized here. Miller and a co-defendant were convicted following a jury trial in the Supreme Court of New York County. Miller was sentenced on July 24, 2001 to five to ten years of imprisonment.

  Miller, his co-defendant, and a third defendant who pleaded guilty, were arrested in connection with an undercover purchase of cocaine on the street. Miller was accused of being the "stash" holder. As the undercover officer counted money to pay for the drugs, Miller handed a sandwich bag with the cocaine vials to an accomplice to give to the officer. Miller testified in his defense at trial, claiming that he had been on the way to visit the mother of his daughter when he was arrested.

  At the charging conference Miller's counsel requested certain charges; the requests were largely denied. When told that he would be giving the first summation in twenty minutes, Miller's counsel left the courtroom. In his absence, the court asked counsel for Miller's co-defendant if he wanted a charge on identification; defense counsel did not respond.*fn1

  In his summation, Miller's counsel argued that an undercover officer spends his entire day "concerned with deception" and that the officer who had testified was not worthy of belief. The prosecutor asked the jury in his summation to weigh the credibility of Miller against that of the police officers who testified at trial. He added that Miller did not need to prove anything since the burden of proof was on the prosecution, but that the jury could consider the fact that the mother of Miller's daughter had not testified to corroborate Miller's testimony that he was scheduled to meet her that day.

  Following summations, Miller's attorney requested that the court charge that knowledge of a crime is insufficient to establish guilt. The court refused, indicating that it would use a patterned jury charge which conveyed essentially the same information. In response to a jury note during deliberations, the court advised it would reread the charge it had already given the jury. No attorney objected. After the charge was reread to the jury, Miller's counsel renewed his request for the Court to add that mere presence even with knowledge is insufficient. The Court declined to do so.

  Miller appealed the judgment of conviction to the Appellate Division, First Department on the grounds that (1) the trial court's initial and supplemental instructions concerning accomplice liability were incomplete and misleading, specifically because they (a) failed to quote N.Y. Penal L. § 20.00, (b) improperly focused on Miller's "participation" in the offense rather than his intentional assistance in the completion of the offense, (c) did not charge that mere presence at the scene "even with knowledge that the crime is taking place" does not by itself establish criminal liability, and (d) failed to explain the application of the law to the facts; and (2) the prosecutor's closing argument was improper in that it (a) suggested, improperly, that Miller was obliged to summon the mother of his daughter, about whom he had testified, and (b) vouched for the credibility of the prosecution's police officer witnesses. On June 3, 2003, the First Department unanimously affirmed his conviction, finding that (1) the instructions given by the trial court to the jury concerning accomplice liability correctly conveyed the applicable legal standards, (2) the trial court fulfilled its obligation to respond meaningfully to the jury's request for a supplementary instruction concerning accomplice liability when it repeated its original instruction to the jury on that matter, and (3) the challenged portion of the prosecutor's closing argument was not improper but, rather, constituted fair comment on the evidence in response to arguments urged upon the jury by Miller's counsel. See People v. Miller, 759 N.Y.S.2d 658 (App.Div. 1st Dep't 2003). Thereafter, Miller applied to the New York Court of Appeals for leave to appeal from the determination of the First Department. That application was denied on July 22, 2003. See People v. Miller, 100 N.Y.2d 584 (2003).

  Miller's pro se federal habeas corpus petition was received by the district court's Pro Se Office on September 18, 2003. The Report recommends that the petition be denied. After the Court granted Miller's request for an extension of time for filing objections to the Report, Miller filed objections dated March 1, 2005. Although Miller's objections largely reiterate the arguments set forth in his original petition without addressing the Report's analysis or conclusions, this Opinion reflects a de novo review of the Report. For the following reasons, the Report is adopted, and the petition is denied.

  DISCUSSION

  The Court may accept, reject, or modify, in whole or in part, the findings or recommendations set forth within the Report. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). The Court must make "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Where there are no objections, the Court may accept the Report, provided there is no clear error on its face. See Heisler v. Kralik, 981 F. Supp. 830, 840 (S.D.N.Y. 1997), aff'd sub nom. Heisler v. Rockland County, 164 F.3d 618 (2d Cir. 1998).

  Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, a writ of habeas corpus may issue only if the state court's adjudication of the claim either resulted in a decision that is contrary to or an unreasonable application of federal law as determined by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue ...


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